Want to see two groups who make the Republicans and Democrats look like one big, happy
family? Then put into one room those attorneys who believe in probate and those who
prefer their clients manage their affairs with a
Revocable Living Trust. You’ll get as contentious an assembly as you could possibly hope
for.
For seniors, the debate has special meaning
because the vast majority of probate cases revolve around the affairs of those Americans
age 60 and over. This report from the American Academy of Estate Planning Attorneys explores the reasons for the debate and offers
guidelines to help seniors steer clear of the
fray.

What Probate Does
Just what is probate? First, it’s important to
note that it comes in two “flavors.” Living Probate is a legal process that determines your
fate when you cannot, generally because
you’ve been disabled by injury, illness, or mental incapacity.
Death Probate is the process that disposes of
your estate after you die. Having a Will virtually guarantees that your estate will go through
probate. But then again, so will dying without
any estate plan at all. (See the Academy Free
Reports, Where There’s a Will, There’s Probate, and The Nightmare of Living Probate.)
While probate attorneys might be happy with
these definitions, Trust attorneys would draw
your attention to all the problems that come
with probate: red tape, expense, publicity, delay, loss of control, and in the case of “living”
probate, potential for personal humiliation.

The Impact on Seniors
In 1989, the American Association of Retired
Persons (AARP) decided to look carefully at
probate and its impact on seniors. As the organization reported in its study, Probate: Con-

K n o w

A b o u t

P r o b a t e

sumer Perspectives and Concerns, probate is
a special concern for older Americans.
The study found that 90% of all probate cases
involved the disposition of property owned by
people 60 years of age or older. Because the
chances of becoming incapacitated increase
dramatically as we age, living probate is also
much more likely to involve seniors.
AARP went on to reveal that consumers nationally spend as much as $2 billion or more
each year on all probate-related expenses,
with attorneys’ fees alone representing more
than $1.5 billion of that amount. The study
noted that attorneys’ and executors’ fees could
consume as much as 20% of small estates,
and as much as 10% of even uncomplicated
estates. And that’s only the beginning. Add to
these fees such expenses as court costs and
appraisers’ fees, and your heirs could end up
with a legacy that’s considerably less than you
intended.

How Probate Affects Seniors’ Families
AARP found that probate usually comes into
play after the surviving spouse of marriage
dies. Most couples own property jointly. So, at
the first death, much if not all of their property
immediately becomes the sole possession of
the survivor. When the survivor dies, however,
their property will have to go through probate
before it can pass on to their heirs. Since few
couples take into consideration probate costs,
many would be saddened to learn how big a
dent it will make in their intended gifts.
Seniors aren’t the only ones who may be blindsided by probate. Their children and grandchildren may feel the bite as well. A study by
American Demographics Magazine revealed
that many Baby Boomers are so financially
strapped today that they are deferring an important financial goal: saving for retirement.
Instead, they are counting on their inheritance

W h a t

E v e r y

S e n i o r

S h o u l d

from Mom and Dad to help pad their meager
retirement funds.
So, the higher the probate fees, the less of a
legacy they will receive, and the harder it will
be for them to retire.

What the AARP Has to Say About Probate
Unreasonable expenses aren’t probate’s only
drawbacks. There’s also the time involved.
AARP’s study found that probate frequently
lasts longer than a year. Having a Will seemed
to make no difference in the time required. In
fact, it could drag the process out even longer.

K n o w

A b o u t

P r o b a t e

to recover any money lost on the earlier discount. (Probate: Consumer Perspectives and
Concerns, Page 51.)
But not all attorneys have been happy with the
status quo and escalating consumer dissatisfaction with probate. A growing number, such
as the members of the American Academy of
Estate Planning Attorneys, would rather spare
their clients the expense, delay, publicity, inconvenience and potential for public humiliation that can be such an integral part of the
probate process.

Is Probate Even Necessary?
“Death Probate” has these primary functions:

Now, add to the expenses and delays of probate these problems: a loss of control over
one’s affairs and the publicity it requires. You
can see why AARP declared that:
Probate as it is generally practiced in the United States is anachronism… and, to the extent
that the probate system is unreasonable, attorney’s fees in connection with the probate work
are unreasonable. (Probate: Consumer Perspectives and Concerns, Page 43.)

Why Attorneys Disagree About Probate
AARP’s edict sums up the reason for so much
rancor between pro-probate and pro-Trust attorneys. It’s a matter of money, and lots of it.
The AARP study noted that attorneys often
build lucrative practices focused solely on probate. Many use cheap Wills as a “loss leader.”
According to AARP:
This marketing practice may set a costly trap
for consumers. Attorneys lay the groundwork
for their probate practice by writing Wills. Some
write Wills cheaply as a way to generate other
business, prompting the companion to loss
leader discounts in retail trade. When the client
dies, the same attorney, or other member of
the firm, probates the Will at a high fee enough

• It verifies the validity of your Will.
• It inventories and establishes the value of
your significant assets.
• It provides your creditors with the opportunity to make claims against your estate.
• It gives disgruntled family members a forum for challenging your Will.
• Lastly, when all these steps have been
completed, it transfers the title to your
property to your heirs, as you’ve instructed
in your Will.
Do you really need probate to accomplish these tasks? AARP says no. Instead, it recommends alternatives such as the Revocable Living Trust.

How to Avoid Probate with a Living Trust
Whether you die with a Will or without one,
probate will be required if you owned any
property in your own name.
A Living Trust makes probate unnecessary by
changing the way you own your property. Although you still have absolute control over all
your assets, just as if you owned them directly,

W h a t

E v e r y

S e n i o r

S h o u l d

you do not own property in your own name.
Instead, your Living Trust owns your property.
And you own your Living Trust.
At first blush, that can sound like a scary proposition. But it isn’t, because you are the Trust
Maker, the Trust Owner and Trust Beneficiary.
So you and you alone control your Trust and
the assets it owns. You can buy, sell, trade,
derive income from, mortgage and give away
your Trust assets, just as before. You can
change your Trust, add to it, or even revoke it
any time you want. Bottom line: the fact that
your Trust owns your property has little, if any,
impact on the way you live and conduct business each day.
But what a difference the Trust makes when
you die. Then, the person you’ve chosen to
take charge of your Trust, your Successor
Trustee, steps in and follows your direction for
the disposition of your estate. Because you
owned no property in your own name, there’s
no need for probate. So there’s no publicity
and, compared to probate, very little expense,
delay or inconvenience for your family.
Living Trusts are also indispensable for avoiding the indignity of living probate, the court proceedings that determine who will oversee your
affairs in the event of your disability. A Living
Trust helps you ensure that your physical and
financial needs are handled as you would want
them to be.
The Living Trust isn’t exactly a new idea. Its
origins date back hundreds of years. More importantly for Americans, the concept has been
used in the U.S. since 1765 when Patrick Henry drafted a Trust for Robert Morris, governor
of the Colony of Virginia. During this century
its many proponents have included John F.
Kennedy, William Waldorf Astor, John D.
Rockefeller, H. L. Hunt, Bing Crosby and Frank
Sinatra. As consumers become better educat-

K n o w

A b o u t

P r o b a t e

ed about the pitfalls of probate, all signs point
to Living Trusts becoming even more popular
in the years ahead.

Just for the Wealthy?
Now that you know all the problems that probate entails, it’s probably the last thing you’d
want to bequeath your loved ones. But is it a
strategy worth pursuing only if you’re a Rockefeller or Vanderbilt?
Absolutely not. Even if your estate is valued at
no more than $100,000, you should probably
have a Living Trust to avoid death probate.
And regardless of how much your estate is
worth, you should definitely have a Living Trust
if you want to avoid living probate.
Who should you turn to for help with your Living Trust? The American Academy of Estate
Planning Attorneys recommends that you start
with an attorney who concentrates on this area
of the law. That’s the best way to ensure that
your legal professional has invested the time
and energy to providing you with the most current estate planning techniques.
But be wary. Remember that Wills and probate are also estate planning tools. So make
sure your attorney focuses on the Living Trust,
rather than Wills.

Getting the Most from Your Living Trust
Once you’ve worked with your estate planning
attorney to draw up your Living Trust, don’t
stop there. Taking advantage of everything
this powerful estate planning tool has to offer
requires these final steps:
• Make sure you fund your Living Trust.
Remember that it only works if the title to
your property has been transferred to the
Trust. If you keep your property in your
own name, you’ve defeated its purpose.
These days, most financial advisors are

W h a t

E v e r y

S e n i o r

S h o u l d

experienced in funding Living Trusts, so be
sure to turn to your advisor for help if you
need it.
• Keep your Living Trust current. As you acquire new property, be sure that you transfer title to these assets to your Living Trust.
• Ideally, a Living Trust is a living, breathing
document, and a plan that will serve you
for many years to come. That means,
however, that you’ve got to take the time to
have it updated as your family’s situation,
your goals, and your needs change. A
good estate planning attorney will stay in
touch with you over the years to ensure
your Living Trust continues to serve you
well.

Penny Wise, Pound Foolish
Yes, it is true that a Living Trust will cost you
more up front than a “discount” Will. But in estate plans, as in all other areas, you get what
you pay for. The bargain you buy today might
just cost you or your heirs a fortune – your fortune – down the road.

About Our Law Firm
Life Planning Law Firm, P.A. is devoted exclusively to estate planning. We are members
of the American Academy of Estate Planning
Attorneys. We offer guidance and advice to our
clients in every area of estate planning. This
list offers a sampling of these services.

Wills. Prepare a Will or other document to outline your wishes.
Revocable Living Trust. Prepare comprehensive, customized plans according to your
needs.
Special Needs and Divorce Protection. Protect loved ones and get informed advice on
these important estate planning issues.

K n o w

A b o u t

P r o b a t e

Asset Protection. Receive guidance on protecting your legacy.
Retirement Planning. Ensure that your taxdeferred accounts are properly structured to
give your family the greatest tax advantages
possible.
Long-Term Health Care. Make sure you have
properly outlined necessary health care instructions.
Creditor Protection. Find out how you can protect your estate and your heirs.
Structured Buy-Out Plans. The plan you create for your children to sell or distribute land and
assets.
Trust Administration. Distributing your estate
after the first and second spouses pass away
according to the way your Trust dictates.
Advanced Planning. Get assistance with matters such as Family Limited Partnerships, Irrevocable Life Insurance Trusts, Charitable
Remainder Trusts and Business Succession
Planning.
Probate Assistance. Get the assistance you
need when someone with or without a Will passes away.
Updating Documents. Ensure that your affairs
are in order with regular estate reviews. Amend
or restate your existing estate plan to ensure
its effectiveness.
Tax Planning. Preserve your wealth and reduce
taxes with proper planning.
Our office is located at 1671 Mound Street,
Sarasota, FL 34236. We offer comprehensive
and personalized estate planning consultations.
Please call us at (941) 914-6000 or visit us online
at www.LifeLawFirm.com.

W h a t

E v e r y

S e n i o r

S h o u l d

About the American Academy of Estate
Planning Attorneys
This report reflects the opinion of the American
Academy of Estate Planning Attorneys. It is
based on our understanding of national trends
and procedures, and is intended only as a simple overview of the basic estate planning issues. We recommend you do not base your
own estate planning on the contents of this
Academy Report alone. Review your estate
planning goals with a qualified estate planning
attorney.
The American Academy of Estate Planning Attorneys is a member organization serving the
needs of attorneys committed to providing their
clients with the best in estate planning.
Through the Academyâ&#x20AC;&#x2122;s comprehensive training and educational programs, it fosters excellence in estate planning among its members
and helps them deliver the highest possible
service to their clients.

K n o w

A b o u t

P r o b a t e

W h a t

E v e r y

S e n i o r

S h o u l d

K n o w

A b o u t

P r o b a t e

KEVIN PILLION
Attorney Kevin Pillion received his Juris Doctorate from Georgetown
University Law Center and has been practicing law since 1990. He is a
member of The Florida Bar, Florida Institute of Certified Public Accountants,
American Academy of Estate Planning Attorneys, National Academy of Elder
Law Attorneys, Florida Academy of Elder Law Attorneys, Life Care Planning
Law Firms Association, Veterans Benefits Committee of the Elder Law
Section of The Florida Bar, and he is Accredited by the Department of
Veterans Affairs. Kevin is licensed to practice law in both Florida and
Washington, DC and is a Certified Public Accountant.

WHAT IS AN ELDER LAW ATTORNEY?
An Elder Law Attorney is aware of the real life problems, health and otherwise, that seniors
experience as they age. They are tied into a system of social workers, psychologists, geriatric care
managers, and other elder care professionals who may be of assistance to their clients. Attorneys
who work with the elderly bring more to their practice than just experience with the legal issues. They
have an understanding of the elderly that allows them and their staff to ignore the myths related to
aging. At the same time, they recognize and empathize with some of the true physical and mental
difficulties that often accompany the aging process.